DENG (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Subclass 573 Higher Education Sector visa. The applicant had been granted the visa on 3 July 2014, which was subject to condition 8516, requiring the holder to continue to satisfy the criteria for the grant of the visa. The delegate's decision to cancel the visa was based on the applicant's failure to comply with this condition, specifically by not being enrolled in a course of study as required by the visa subclass criteria.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to affirm the cancellation. The primary legal issue was whether the applicant had complied with visa condition 8516, which necessitates ongoing enrolment in a qualifying course of study. The Tribunal also had to consider whether there were any exceptional circumstances or matters beyond the applicant's control that warranted a different outcome, and to weigh various factors in exercising its discretion regarding cancellation.

The Tribunal found that the ground for cancellation under section 116(1)(b) was established because the applicant had not complied with visa condition 8516. The applicant's failure to attend a scheduled hearing, respond to a Notice of Intention to Consider Cancellation (NOICC), or provide any information through their representative meant the Tribunal had no information regarding the circumstances of the non-compliance. Consequently, the Tribunal gave no weight to the applicant's favour regarding exceptional circumstances or matters beyond their control. While acknowledging the applicant's likely original purpose of study, the Tribunal found no compelling need for the applicant to remain in Australia. The applicant's compliance with other visa conditions was noted, but this was outweighed by the breach of condition 8516. Due to the lack of information, the Tribunal also gave no weight to potential hardship.

In conclusion, after considering all relevant factors, the Tribunal affirmed the decision to cancel the applicant's Subclass 573 Higher Education Sector visa.